Belanger v. City of Nashua

• Decision Date: 11 May 1981
• Docket Number: No. 80-148,80-148
• Citation: 121 N.H. 389,430 A.2d 166
• Parties: Mary BELANGER et al. v. CITY OF NASHUA et al.
• Court: New Hampshire Supreme Court

Page 166

430 A.2d 166

121 N.H. 389

Mary BELANGER et al. v. CITY OF NASHUA et al.

No. 80-148.

Supreme Court of New Hampshire.

May 11, 1981.

Gottesman & Hollis, Nashua (David M. Gottesman, Nashua, on brief and orally), for plaintiffs.

Robert P. Sullivan, Nashua, on brief and orally, for defendants.

BOIS, Justice.

This case comes before us on appeal from a ruling of the superior court, which vacated an order of the Nashua Zoning Board of Adjustment as being unreasonable. The defendants, the City of Nashua and its zoning board of adjustment, argue that the court's denial of the city's request for a ruling that the zoning board's finding must be held "prima facie unlawful and reasonable," RSA 31:78 (Supp.1979), constituted reversible error. They also allege that the court erred in not determining the spirit of the zoning ordinance on the basis of the comprehensive plan according to which it was enacted. We disagree with the defendants' arguments and affirm.

The premises that are the subject of this appeal consist of a two-story building owned by the plaintiffs and located on Main Street in Nashua in a Class A Urban Residence District, as defined in the Nashua zoning ordinance. For approximately fifteen years prior to the request for a variance, Mary Belanger, one of the plaintiffs, has lived in the house and has operated a real estate office on the first floor. Although the zoning ordinance does not permit commercial use of property located in this zone, it does allow this particular use to continue as a non-conforming use because it pre- dates the inception of the ordinance's prohibition. Nashua, N.H., Rev. Ordinances title 8, ch. 7, § 604 (1977). In contemplation of a sale of the premises, the plaintiffs, on October 25, 1979, applied to the Nashua Zoning Board of Adjustment for a variance that would allow for the expansion of the non-conforming commercial use throughout the house.

The zoning board held a hearing on November 27, 1979, at which it denied the plaintiffs' application because the requested use was "not in the spirit of the ordinance." After the plaintiffs had been denied a rehearing by the board, they filed an appeal to the superior court under RSA 31:77 (Supp.1979). The Trial Court (Goode, J.), after a hearing on February 14 and 15, 1980, entered an order in which he denied certain of the city's requests for findings and vacated the zoning board's order. His order, from which the defendants appeal, further stated that:

"Upon a consideration of all the evidence offered, the Court is persuaded by the balance of probabilities that the order of the Nashua Zoning Board of Adjustment is unreasonable. That order is accordingly vacated and this matter remanded to the City of Nashua for such further proceedings as may be required, not inconsistent with this ruling."

RSA 31:78 (Supp.1979) states that "the burden of proof shall be upon the party seeking to set aside any order or decision of the board of adjustment ... to show that the same is unreasonable or unlawful." The statute further provides that the trial court, in reviewing such a decision or order, must deem all findings of the board of adjustment "prima facie lawful and reasonable." RSA 31:78 (Supp.1979). Additionally, the trial court shall not set aside or vacate such orders or decision, "except for errors of law, unless the court is persuaded by the balance of probabilities, on the evidence before it, that said order or decision is unreasonable." Id.; e. g., Slater v. Planning Bd. of Town of Rumney, 121 N.H. ---, ---, 427 A.2d 511, 513 (1981); Cook v. Town of Sanbornton, 118 N.H. 668, 669, 392 A.2d 1201, 1202 (1978).

The defendants argue that the trial court erred in not regarding the findings of the zoning board as prima facie lawful and reasonable. They direct our attention to the court's denial of their request that "(t)he finding by the zoning board that the requested use would not be in the spirit of the ordinance must be held to be prima facie lawful and reasonable." Although this finding by the court might alone constitute error, when read in the context of the court's ultimate finding of the unreasonableness of the zoning board's decision based on a balancing of the probabilities, and especially in conjunction with its denial of another of the defendants' requests by which it essentially concluded that the plaintiffs had "overcome the statutory presumption of lawfulness and reasonableness of the finding of the zoning board " (emphasis added), we find no error. See Slater v. Planning Bd. of Town of Rumney, supra; Sprague v. Town of Acworth, 120 N.H. 641, 644, 419 A.2d 1075, 1076 (1980); Burns v. Bradley, 120 N.H. 542, 546-47, 419 A.2d 1069, 1072 (1980).

The defendants also...